Citation Nr: 0831898
Decision Date: 09/18/08 Archive Date: 09/30/08
DOCKET NO. 04-38 613 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a total disability rating, for compensation
purposes, based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant, spouse, and daughter
ATTORNEY FOR THE BOARD
Clifford R. Olson, Counsel
INTRODUCTION
The veteran had active service from July 1973 to June 1975
and from May 1976 to September 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2004 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
In June 2008, the veteran, his spouse and daughter appeared,
by way of a videoconference hearing, before the undersigned
Veterans Law Judge, who is the Board member making this
decision and who was designated by the Chairman to conduct
that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
At his videoconference hearing, the veteran testified that he
had treatment at a VA medical center all the time. Review of
the file discloses that the last VA examination was in July
2003 and that VA clinical notes were last obtained in March
2003. This was before the veteran lost his job and filed the
current claim in October 2003. Under these circumstances,
the RO should obtain current VA clinical records and a
current VA examination and medical opinion. See 38 U.S.C.A.
§ 5103A (West 2002).
Accordingly, the case is REMANDED for the following action:
1. The agency of original jurisdiction
should obtain a complete copy of the
veteran's VA medical records, beginning
in March 2003 to the present, and
associate them with the claims folder.
2. The one disability for which
service connection has been established
is a chronic lumbosacral strain, with
bulging disc L4-L5 and disc herniation
L5-S1, currently rated as 60 percent
disabling. The veteran should be
scheduled for a VA examination of his
spine. The claims folder should be
made available to the examiner for
review in conjunction with the
examination. Any tests or studies
deemed necessary to respond to the
following inquiries should be done.
The examiner should provide a complete
explanation in response to the
following.
a. Describe all limitations of
thoracolumbar spine motion. Special
attention should be given to the
presence or absence of pain, any
limitation of motion, instability and
weakness. The examiner must obtain
active and passive range of motion (in
degrees), state if there is any
limitation of function and describe it.
If possible, the examiner should
estimate any additional limitation of
motion during flare-ups, in degrees.
b. Describe all neurologic deficits
associated with the service-connected
back disorder, characterizing them as
mild, moderate or severe. If there are
no associated neurologic deficits, the
examiner should so state.
c. Express an opinion as to whether it
is at least as likely as not that the
service-connected back disorder would
prevent the veteran from engaging in
substantially gainful employment
compatible with his education and
experience.
3. The agency of original jurisdiction
should then readjudicate this claim in
light of any evidence added to the record.
If the benefit sought on appeal remains
denied, the appellant and his
representative should be provided a
supplemental statement of the case (SSOC).
An appropriate period of time should be
allowed for response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).